Insurance Commission (WA) v Kightly
[2005] WASCA 154
•15 AUGUST 2005
INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- KIGHTLY [2005] WASCA 154
| (2005) 30 WAR 380 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 154 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:17/2004 | 9 MAY 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 15/08/05 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | INSURANCE COMMISSION OF WESTERN AUSTRALIA PAUL KIGHTLY |
Catchwords: | Insurance Doctrine of subrogation Respondent injured during training course and paid $70,557.30 by appellant insurer Respondent then received $145,000, plus costs under consent judgment by settlement deed against tortfeasor Appellant insurer sued respondent for repayment of $70,557.30, either under terms of the insurance policy or under doctrine of subrogation Equitable nature of doctrine of subrogation What insurance policies doctrine of subrogation may apply to Whether personal accident insurance policy was an indemnity policy or contingency policy Whether payment by consent judgment constituted a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated |
Legislation: | Insurance Contracts Act 1984 (Cth), s 48(2) |
Case References: | AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655 Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335 Blaauwpot v Da Costa (1758) 1 Ed 130; 28 ER 633 Boag v Standard Marine Insurance Co Ltd [1937] 2 KB 113 Bradburn v The Great Western Railway Company (1874) LR 10 Ex 1 British Traders' Insurance Co Ltd v Monson (1964) 111 CLR 86 Burnand v Rodocanachi Sons & Co (1882) 7 App Cas 333 Castellain v Preston (1883) 11 QBD 380 Commercial Union Assurance Co v Lister LR (1874) 9 Ch App 483 Dalby v The India and London Life-Assurance Co (1854) 15 CB 365 Dufourcet & Co v Bishop (1886) 18 QBD 373 Gibson v Sun Life Assurance Co of Canada (1984) 6 DLR (4th) 746 Glynn v Scottish Union & National Insurance Co Ltd (1963) 40 DLR (2d) 929 Gould v Curtis [1913] 3 KB 84 Guthrie House Ltd v Cornhill Insurance Co Ltd (1982) 2 ANZ Ins Cas 60-466 Horse, Carriage and General Insurance Co (Ltd) v Petch (1916) 33 TLR 131 Hussain v New Taplow Paper Mills Ltd [1988] 1 All ER 541 In re TH Knitwear (Wholesale) Ltd [1988] 2 WLR 276 Insurance Commission of Western Australia v Kightly [2004] WADC 5 John Edwards and Company v Motor Union Insurance Company Ltd (1922) 2 KB 249 Levesque v Co-operative Fire & Casualty Co (1976) 68 DLR (3d) 553 McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854 Morganite Ceramic Fibres Pty Ltd v Sola Basic Australia Ltd (1987) 11 NSWLR 189 Napier v Hunter [1993] AC 713 Orakpo v Manson Investments Ltd [1978] AC 95 Orion Insurance Co Ltd v Hicks (1972) 32 DLR (3d) 256 Phoenix Assurance Co Ltd v Spooner [1905] 2 KB 753 Randal v Cockran (1748) 1 Ves Sen 98 Re Palmdale Insurance Ltd (In liq) (No 3) [1986] VR 439 State Government Insurance Office (Queensland) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228 The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 The Solicitors' & General Life Assurance Society v Lamb (1864) 2 De GJ & S 251 Theobold v The Railway Passengers Assurance Company (1854) 10 Ex 45 Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436 West of England Fire Insurance Company v Isaacs [1897] 1 QB 226 Willumsen v Royal Insurance Co Ltd (1975) 63 DLR (3d) 112 Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91 Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 Commissioner of Taxation of the Commonwealth of Australia v Scully (2000) 201 CLR 148 Container Handlers Pty Ltd v Insurance Commission of Western Australia (2001) 25 WAR 42 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Gasson v Cole (1910) 26 TLR 468 Graham v Baker (1961) 106 CLR 340 Gurney v Grimmer (1932) 38 Com Cas 7 In re Caire [1927] SASR 220 In re Frackelton v McQueen (a Solicitor) [1910] St R Qd 1 Kinch v Walcott [1929] AC 482 Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 McDonald v Moore [2003] WASCA 21 Medical Defence Union Ltd v Department of Trade [1980] Ch 82 Thiess Contractors Pty Ltd v Norcon Pty Ltd (2001) 11 ANZ Ins Cas 61509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- KIGHTLY [2005] WASCA 154 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- Appellant
AND
PAUL KIGHTLY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- KIGHTLY [2004] WADC 5
File No : CIV 1894 of 2002
(Page 2)
Catchwords:
Insurance - Doctrine of subrogation - Respondent injured during training course and paid $70,557.30 by appellant insurer - Respondent then received $145,000, plus costs under consent judgment by settlement deed against tortfeasor - Appellant insurer sued respondent for repayment of $70,557.30, either under terms of the insurance policy or under doctrine of subrogation - Equitable nature of doctrine of subrogation - What insurance policies doctrine of subrogation may apply to - Whether personal accident insurance policy was an indemnity policy or contingency policy - Whether payment by consent judgment constituted a "payment by way of benevolence" or an "ex gratia payment" incapable of being subrogated
Legislation:
Insurance Contracts Act 1984 (Cth), s 48(2)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr D Wallace
Respondent : Mr R J L McCormack
Solicitors:
Appellant : Downings Legal
Respondent : Bradley & Bayly
Case(s) referred to in judgment(s):
AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655
Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335
Blaauwpot v Da Costa (1758) 1 Ed 130; 28 ER 633
(Page 3)
Boag v Standard Marine Insurance Co Ltd [1937] 2 KB 113
Bradburn v The Great Western Railway Company (1874) LR 10 Ex 1
British Traders' Insurance Co Ltd v Monson (1964) 111 CLR 86
Burnand v Rodocanachi Sons & Co (1882) 7 App Cas 333
Castellain v Preston (1883) 11 QBD 380
Commercial Union Assurance Co v Lister LR (1874) 9 Ch App 483
Dalby v The India and London Life-Assurance Co (1854) 15 CB 365
Dufourcet & Co v Bishop (1886) 18 QBD 373
Gibson v Sun Life Assurance Co of Canada (1984) 6 DLR (4th) 746
Glynn v Scottish Union & National Insurance Co Ltd (1963) 40 DLR (2d) 929
Gould v Curtis [1913] 3 KB 84
Guthrie House Ltd v Cornhill Insurance Co Ltd (1982) 2 ANZ Ins Cas 60-466
Horse, Carriage and General Insurance Co (Ltd) v Petch (1916) 33 TLR 131
Hussain v New Taplow Paper Mills Ltd [1988] 1 All ER 541
In re TH Knitwear (Wholesale) Ltd [1988] 2 WLR 276
Insurance Commission of Western Australia v Kightly [2004] WADC 5
John Edwards and Company v Motor Union Insurance Company Ltd (1922) 2 KB 249
Levesque v Co-operative Fire & Casualty Co (1976) 68 DLR (3d) 553
McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854
Morganite Ceramic Fibres Pty Ltd v Sola Basic Australia Ltd (1987) 11 NSWLR 189
Napier v Hunter [1993] AC 713
Orakpo v Manson Investments Ltd [1978] AC 95
Orion Insurance Co Ltd v Hicks (1972) 32 DLR (3d) 256
Phoenix Assurance Co Ltd v Spooner [1905] 2 KB 753
Randal v Cockran (1748) 1 Ves Sen 98
Re Palmdale Insurance Ltd (In liq) (No 3) [1986] VR 439
State Government Insurance Office (Queensland) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228
The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569
The Solicitors' & General Life Assurance Society v Lamb (1864) 2 De GJ & S 251
Theobold v The Railway Passengers Assurance Company (1854) 10 Ex 45
Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436
West of England Fire Insurance Company v Isaacs [1897] 1 QB 226
Willumsen v Royal Insurance Co Ltd (1975) 63 DLR (3d) 112
Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91
(Page 4)
Case(s) also cited:
Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
Commissioner of Taxation of the Commonwealth of Australia v Scully (2000) 201 CLR 148
Container Handlers Pty Ltd v Insurance Commission of Western Australia (2001) 25 WAR 42
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Gasson v Cole (1910) 26 TLR 468
Graham v Baker (1961) 106 CLR 340
Gurney v Grimmer (1932) 38 Com Cas 7
In re Caire [1927] SASR 220
In re Frackelton v McQueen (a Solicitor) [1910] St R Qd 1
Kinch v Walcott [1929] AC 482
Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
McDonald v Moore [2003] WASCA 21
Medical Defence Union Ltd v Department of Trade [1980] Ch 82
Thiess Contractors Pty Ltd v Norcon Pty Ltd (2001) 11 ANZ Ins Cas 61509
(Page 5)
1 STEYTLER P: In May 1998 the respondent was a "volunteer sea rescue member" with the Denmark Volunteer Sea Rescue Group (WA Police Service) ("the Volunteer Group"). As such, he undertook a training course conducted by a body known as Surf Lifesaving Western Australia Inc ("Surf Lifesaving WA"). The course was conducted on 30 May 1998. The respondent was injured while taking the course. The boat in which he was seated struck a wave, causing the bow of the boat to "jump" and crush his right leg.
2 The Volunteer Group had obtained insurance cover from the appellant, the Insurance Commission of Western Australia. The insurance policy obtained from the appellant ("policy") provided "special cover" in the case of a bodily injury caused to any volunteer with the Volunteer Group by an accident. At some time prior to 21 February 2002, the appellant paid to the respondent, pursuant to the terms of the policy, an amount of $70,557.30. That sum was the total of four amounts, as follows:
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3 The respondent was not satisfied with his claim under the policy. He brought an action against Surf Lifesaving WA, alleging that it had negligently caused his injury in breach of a duty of care owed to him.
4 On 21 February 2002 the respondent and Surf Lifesaving WA entered into a "Deed of Release, Discharge and Indemnity". Recitals to that document ("Deed") record, amongst other things, the fact of the respondent's action against Surf Lifesaving WA, the fact that the appellant (described as "RISKCOVER") had paid the respondent $70,557.30 under the policy and the fact that Surf Lifesaving WA and the respondent "have agreed to settle the action without any admission of liability, by way of Consent Judgment against … [Surf Lifesaving WA] in the District Court".
(Page 6)
- It also recites that Surf Lifesaving WA has offered to pay the respondent the sum of $145,000, plus legal costs of $35,000 in full and final settlement of any and all causes of action or claims which the respondent might have against Surf Lifesaving WA arising out of the accident and that the respondent has accepted that offer.
5 The body of the Deed records that, in consideration of the payment of the amounts to be made the subject of the consent judgment, the respondent, in effect, releases and discharges Surf Lifesaving WA (and its insurer, Suncorp Metway Insurance Ltd ("Suncorp Metway")) from any liability arising out of the accident. It also records that the respondent agrees to indemnify Surf Lifesaving WA and Suncorp Metway against any claim which may be made by the appellant or by the respondent "in respect of the payment made [by the appellant under the policy] in the sum of $70,557.30" (cls 1.1.2 and 1.1.3). Also, by cl 1.1.4 the respondent indemnified Surf Lifesaving WA and Suncorp Metway "against any claims, demands or repayment of any sums of monies owed to … [the appellant] that may be required to be made in respect of the Settlement Sum".
6 On 25 February 2002 a consent judgment was entered, pursuant to the terms of the Deed, in the proceedings brought by the respondent against Surf Lifesaving WA. By that judgment, Surf Lifesaving WA was ordered to pay the respondent $145,000, plus costs of $35,000. Those amounts were expressed, in the judgment, to be paid "in full and final settlement of all causes of action … [the respondent] may have or had [sic] for damages for personal injury suffered by … [him] against … [Surf Lifesaving WA] on 30 May 1998". The amounts were paid to him on the same day.
7 When it learned of the payment made to the respondent under the consent judgment, the appellant asked the respondent to repay to it the sum of $70,557.30. It said that it was entitled to have that money returned to it pursuant to cl 1.5(f) of the policy. That clause reads, relevantly, as follows:
"Any compensation payable under clause 1.4 shall be reduced by such amount as the Volunteer is entitled to receive or has received as compensation and/or damages under or from:
(i) …
(ii) any other source whatsoever in respect of the same Injury."
(Page 7)
8 It also asserted a common law right of subrogation and one pursuant to an implied term of the policy.
9 The respondent refused to refund the money. The appellant consequently sued him. The trial of the action took place in November 2003 and, on 30 January 2004, judgment was given in favour of the respondent: Insurance Commission of Western Australia v Kightly [2004] WADC 5. The trial Judge found, as regards the claim under cl 1.5(f), that, when the respondent received the money paid to him under the policy, he had not received and was not entitled to receive any amount from Surf Lifesaving WA in respect of his injury and had only a cause of action in damages. He went on to find (at [28]) that that cause of action was not an "entitlement" to receive an amount of money and that cl 1.5(f) of the policy consequently did not preclude the respondent from receiving it at the time that he did so (at [28]). He declined to find that there existed any implied term giving the appellant a right of subrogation (at [30]). As to the asserted common law right of subrogation, the trial Judge found (at [31]) that the appellant's claim "depends upon the policy being an indemnity policy" and (at [36]) that it was not an indemnity policy, with the result that the respondent had no right of subrogation.
10 There are two rather prolix and argumentative grounds of appeal. They come down to the single proposition that the policy, so far as it recompensed the respondent in this case, was an indemnity policy and, hence, that the appellant was entitled to exercise its common law right of subrogation in respect of the funds obtained by the respondent pursuant to the consent judgment. Neither party had contended at the trial (and there is still no contention) that the appellant should, or even could, have applied to set aside the Deed and the consent judgment.
11 The respondent lodged a notice of contention raising two similarly prolix and argumentative grounds in support of the decision of the trial Judge. The first is essentially that what was paid pursuant to the Deed and the consent judgment did not constitute "compensation and/or damages" for the purposes of cl 1.5(f) of the policy (although there was no appeal by the appellant against the finding of the trial Judge that cl 1.5(f) had no application to the money received by the respondent from Surf Lifesaving WA (or its insurer)). The second is to the effect that there was a reason additional to those referred to by the trial Judge which supported his conclusion that the policy was not an indemnity policy, that reason being essentially that the policy was a contingency policy not requiring proof of actual loss.
(Page 8)
12 I propose, first, to deal with the grounds of appeal and with the second ground of the notice of contention, all of which go to the question whether the policy was or was not relevantly an indemnity policy. I will thereafter deal with the questions whether, if the policy is relevantly an indemnity policy, that gives to the appellant the right to exercise a power of subrogation in respect of the money received by the respondent under the Deed and the consent judgment, or a right to compensation arising out of the respondent's conduct in making the Deed and consenting to a judgment in the terms entered. Those questions, not starkly addressed in the notice of contention or, in the latter case, in the grounds of appeal, took on some significance during the course of argument in the appeal and became the subject of subsequent written submissions lodged on behalf of the parties with the leave of the Court. It is unnecessary to deal with the first ground of the notice of contention given that there is no appeal against the trial Judge's construction of cl 1.5(f).
Was the policy one of indemnity?
The policy
13 The policy starts with a number of definitions and interpretations.
14 The word "Injury" is defined to mean:
"bodily injury which:
(i) is sustained by the Volunteer during the Period of Cover;
(ii) is caused by an accident; and
(iii) directly and independently of any other cause, except illness directly resulting from all medical or surgical treatment rendered necessary by such bodily injury, results in any of the Events set out in clause 1.4 within 12 calendar months from the date of the accident by which such bodily injury is caused."
15 The word "Volunteer" is defined to mean any person who volunteers his service to "the Public Authority" (being the Volunteer Group) whilst engaged, amongst other things, in sea search and rescue operations and/or training activities "under the authorisation and/or control of the Public Authority".
16 The term "Medical Expenses" is defined to mean medical and other like charges (these are listed at some length in the policy) which are
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- "necessarily and reasonably incurred by the Volunteer or by the Public Authority in respect of the Volunteer solely and directly in connection with an Injury".
17 "Travel Expenses" are defined to mean "the reasonable fares and expenses incurred by the Volunteer and authorised by … [the insurer or others who are nominated] … to travel from the place he/she resides to a hospital or other place for medical treatment, medicines and medical requisites, medical or surgical attendance and treatment … [etc] and return to his/her residence". That term is also defined to include the reasonable cost of meals and lodging necessarily incurred by the volunteer while away from his or her residence for the purpose of such treatment or attendance, subject to stated limitations.
18 "Vocational Rehabilitation Expenses" are defined to mean, "in connection with an Injury for which the Volunteer is entitled to cover herein, the progressive and co-ordinated use of measures for counselling, occupational and vocational training and retraining, work assessment, and the use of aids, appliances, services or other means to facilitate the restoration of the Volunteer to the fullest capacity for gainful employment of which he/she is capable".
19 Clause 1.2(a) provides that the insurer "will pay to or on behalf of the Public Authority the Compensation stated in clause 1.4 if any of the Events set out in clause 1.4 shall happen to the Volunteer resulting from an Injury".
20 Clause 1.3 provides that, subject to cls 1.4 and 1.5, coverage is limited to a "Capital Sum" of $250,000 in respect of any one injury to any one volunteer. Clause 1.4 then goes on to provide for the compensation which is payable to each volunteer. It does so by listing some 49 events against, in each case, a percentage of the sum of $250,000 specified in cl 1.3. So, for example, event 1 is death and the percentage specified is 100 per cent. By way of further example, similar percentages are specified in respect of events 2 and 3, being respectively the total loss of sight of both eyes and the total loss of sight of an only eye.
21 As will be apparent, items 45 to 48 are those which are material in this case. Item 45 is "Vocational Rehabilitation Expenses" and a percentage of 7 per cent is specified in respect of it. Item 46, being "Medical Expenses", has a specified percentage of 30 per cent. That item (or "Event") also provides that if the Public Authority or Volunteer becomes entitled to a refund of all or part of the medical expenses from
(Page 10)
- any other source, the insurer will only pay the excess of the amount recoverable from such other source. Item 47, being "Travel Expenses", has no specified percentage. Instead, a limit of $2000 is provided for (albeit the insurer paid more than that in this case). Item 48 is "Temporary Total Disablement" which necessarily and continuously disables the volunteer from attending to his or her business or occupation or, if he or she has none, which confines him or her immediately and continuously to the house and prevents him or her from attending to any of his or her duties (if any). In the case of an employed person (including one who is self-employed), the item provides for payments of a weekly amount of up to 1 per cent of the limit of $250,000 but not exceeding, in any case, the normal weekly remuneration of the volunteer at the time of injury. There is a proviso to that item which provides that such weekly payments are to be made so long as the disablement continues but not exceeding an aggregate of 104 weeks for any single disablement.
22 Clause 1.5 provides for a series of "Compensation Limits". The more material of these read as follows:
"(a) …
(b) Any compensation payable for Events 1 to 44 shall be in addition to any sum payable under Events 45 to 49 in respect of the same Injury, but not exceeding in the aggregate the Capital Sum specified in clause 1.3.
(c) …
(d) Any weekly compensation entitlements under Event 48 shall cease when the Volunteer has been certified by a legally qualified medical practitioner to be sufficiently recovered from the Injury to resume his/her pre-accident occupation or business, or in the case of an unemployed Volunteer has recovered from the Injury to the extent that the Injury is no longer a factor preventing him/her taking on employment of which he/she is capable.
However, compensation will be payable under Events 2 to 44 if the Volunteer is entitled to such compensation but not exceeding in the aggregate the Capital Sum specified in clause 1.3.
(Page 11)
- (e) No compensation shall be payable under Event 48(i) if the Volunteer is not in receipt of a wage or salary or self-employed income."
23 I have earlier set out the relevant part of clause 1.5(f).
24 Clause 1.6 provides for a series of "Limitations of Cover". Subclause (c) thereof reads as follows:
"(c) No compensation shall be payable unless the Volunteer procures and follows advice from a legally qualified medical practitioner or dentist as soon as possible after the happening of an Injury."
The trial Judge's reasoning in respect of the policy
25 The trial Judge, after considering the terms of the policy, said (at [32]) that there were various factors which pointed to the policy being a contingency policy rather than an indemnity policy. He said, first, that the policy was described as being a personal accident policy and that a personal accident policy is often given as an example of a contingency policy in judgments and textbooks. He also said that the majority of the payments provided for in cl 1.4 of the policy are "clearly in the nature of contingency payments as they are payments of a percentage of the capital sum in the event of the loss of function, injury or death". After distinguishing two Canadian cases to which he had been referred, the trial Judge went on to say (at [36]):
"In this case the policy is an accident policy. It provides that a fixed percentage of the capital sum is to be paid to a volunteer where vocational expenses or medical expenses have been incurred and where disability has occurred and for a fixed sum to be paid where travel expenses have been incurred. While, in the case of medical expenses and travel expenses, the expense has to be incurred before the payment is to be made the payment is nevertheless a payment of the amount stated in the policy. Similarly in the event of temporary total disablement a fixed sum is to be paid to the volunteer for as long as the disablement continues up to a maximum period of 104 weeks. While in the case of an employed volunteer the payment cannot exceed the normal weekly remuneration of the volunteer it is nevertheless a payment upon a contingent event which, while it cannot exceed the loss, is not measured by that loss. I conclude that the policy is not an indemnity policy and that … [the
(Page 12)
- appellant] is not entitled to recover from … [the respondent] the payments it has made to him under the law of subrogation."
The relevant principles
26 The doctrine of subrogation is founded upon equitable principles: Burnand v Rodocanachi Sons & Co (1882) 7 App Cas 333 at 339; John Edwards and Company v Motor Union Insurance Company Ltd (1922) 2 KB 249 at 252 - 253; Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335 at 348; Guthrie House Ltd v Cornhill Insurance Co Ltd (1982) 2 ANZ Ins Cas 60-466 at 77,610; Morganite Ceramic Fibres Pty Ltd v Sola Basic Australia Ltd (1987) 11 NSWLR 189 at 194; Napier v Hunter [1993] AC 713; and see, generally, the cases reviewed by Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's: Equity Doctrines and Remedies, 4th ed (2002) at [9-015]. It prevents the insured from making a double recovery, once from the insurer and once from the tortfeasor (in a tort case) in circumstances in which the insurer has undertaken to indemnify the insured against actual financial loss. It does that by giving two rights to the insurer. First, it gives to the insurer the right to require the insured to pursue any remedy available against the tortfeasor for the benefit of the insurer. Second, it gives to the insurer the right to recover from the insured any benefit received by the insured in diminution or extinction of the loss against which the insured has been indemnified. Brett LJ in Castellain v Preston (1883) 11 QBD 380 at 388 described the doctrine in the following way:
"[A]s between the underwriter and the assured the underwriter is entitled to the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted on or already insisted on, or in any other right, whether by way of condition or otherwise, legal or equitable, which can be or has been exercised or has accrued, and whether such right could or could not be enforced by the insurer in the name of the assured by the exercise or acquiring of which right or condition the loss against which the assured is insured, can be, or has been diminished."
27 In the same case, at 401 - 402, Bowen LJ said, of the principle which must be applied, that:
"It is a corollary of the great law of indemnity, and is to the following effect:- That a person who wishes to recover for and is paid by the insurers as for a total loss, cannot take with both
(Page 13)
- hands. If he has a means of diminishing the loss, the result of the use of those means belongs to the underwriters. If he does diminish the loss, he must account for the diminution to the underwriters. In Simpson v Thomson 3 App Cas 279, at p 284 it is said by Lord Cairns, LC:
'I know of no foundation for the right of underwriters, except the well known principle of law, that where one person has agreed to indemnify another, he will, on making good the indemnity, be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or reimbursed himself for the loss.'"
"The obligation in a policy of life insurance is not based upon any doctrine of compensating the person for the event. Money is no compensation for death. An insurance upon life is the creation in favour of a person who has an insurable interest of an obligation to pay money in an event, namely, the contingency of human life."
29 The doctrine has sometimes been said not to apply to accident policies (see, for example, Bradburn v The Great Western Railway Company (1874) LR 10 Ex 1; The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 588, per Windeyer J, obiter (relied on by the trial Judge); and Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91 at 97, per Young CJ and Menhennitt J, also obiter). This may be because many of the earlier forms
(Page 14)
- of accident policy provided for the payment of a fixed sum in the case of the loss of a limb or death and for fixed weekly sums in the case of injury, regardless of the existence of actual financial loss: Glynn v Scottish Union & National Insurance Co Ltd (1963) 40 DLR (2d) 929 at 938 and Morgan (ed), Porter's Laws of Insurance, 8th ed (1933), at 449. In more modern times, at least, it would be more accurate to say that the doctrine does not ordinarily apply to accident policies (see Mitchell, The Law of Subrogation, Clarendon Press, Oxford (1994) at 75; and Tarr, Liew and Holligan: Australian Insurance Law, 2nd ed (1991), at 281 - 282), but that is because such policies have not ordinarily been indemnity policies (MacGillivray at [22-26]; Mitchell at 75 and Tarr et al at 282; and see also Kimball and Davis, The Extension of Insurance Subrogation (1962) 60(7) Mich L Rev 841 at 859). A personal accident policy which provides for a specified lump sum compensation in the case of the loss of a limb, varying with the nature of the limb lost, while it could be said to compensate the person for the event, could not sensibly be said to do so by way of indemnification of a loss (although cf Hasson, above, at 418 and Mitchell at 75). The same could be said of a policy which provides for the payment of a weekly or monthly sum during a period of incapacity arising from an accident, where the payment is made regardless of any financial loss (a provision found in many of the earlier forms of accident policy: Porter's Laws of Insurance, above, at 449). However, a policy which compensates the insured for actual financial loss suffered as a consequence of an injury caused by accident is one of indemnity. This is so regardless of the generic name given to that type of policy (cf Derham, Subrogation in Insurance Law, The Law Book Co Ltd (1985) at 32). Even where the policy is a so-called "valued" policy in which the parties to it agree what shall be paid on the happening of an event it may be one of indemnity if the agreement is that the insured is still required to prove the fact of his or her loss notwithstanding that the parties have agreed in advance what shall be the amount thereof in the event insured against: Glynn at 937 and British Traders' Insurance Co Ltd v Monson (1964) 111 CLR 86 at 93. Indeed, the one policy might, in some respects, be an indemnity policy and, in others, not: see, for example, Theobold v The Railway Passengers Assurance Company (1854) 10 Ex 45, which, on one view (see Glynn at 939 - 940), dealt with a policy providing for both forms of insurance, and Orion Insurance Co Ltd v Hicks (1972) 32 DLR (3d) 256 at 258.
30 The two Canadian cases to which the trial Judge was referred (Glynn and Orion Insurance) shed some light on the issue. The first of them, Glynn, concerned what was referred to as a "standard automobile policy".
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- It provided, amongst other things, for coverage of "medical payments" for each person sustaining bodily injury caused by an accident while driving or being a passenger in the insured vehicle. The insured had an accident while driving the vehicle. His wife was a passenger. He claimed for medical expenses incurred by him and also for those incurred by his wife, in respect of whom it was accepted that the medical expenses were "necessaries which a husband would be required to provide and not medical expenses gratuitously provided for a person to whom … [the husband] had no obligation in that regard". The Court (Porter CJO and Gibson and Kelly JJA) ruled that the relevant provision was one of indemnity, with the consequence that the doctrine of subrogation was applicable. After considering the traditional classification of contracts of insurance, the Court went on (at 933) to say that whether a particular contract was or was not one of indemnity was "to be determined by the exact nature of the agreement into which … [the insurer] has entered and not by whether the insuring agreement can be conveniently categorized under one or other of several general designations".
31 The second Canadian case, Orion Insurance, also dealt with an automobile insurance policy. The insurer agreed to pay weekly benefits of $35 if the insured was disabled from continuing his employment as a result of an automobile accident, the benefit being payable only up to the "money value of the time" of the insured. This last expression was held by Wilson J (at 260) to refer to the income which would normally have been gained by, or accrued to, the insured during the time of his disability. Because the provision contemplated "not an automatic benefit which falls in upon the happening of the accident, but rather indemnity for loss of or reduction of income occasioned by the accident" (at 260), Wilson J held that the payment was one of indemnity. Orion Insurance was followed by the New Brunswick Court of Appeal in Levesque v Co-operative Fire & Casualty Co (1976) 68 DLR (3d) 553 and by the Ontario High Court in Gibson v Sun Life Assurance Co of Canada (1984) 6 DLR (4th) 746. One commentator, Hasson, above, at 419, suggests that in the light of these cases the trend in Canada, at least, seems to be to regard disability insurance as being a contract of indemnity.
The application of the principles to this policy
32 In this case the claimable medical expenses, amounting in all to $8,714.40, were, by virtue of the definition of the term "Medical Expenses", limited to those which were necessarily and reasonably incurred by the respondent. Moreover, I have mentioned that item 46 provides that if the volunteer becomes entitled to a refund of all or part of
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- the medical expenses from any source, the insurer will only pay the excess of the amount recoverable from such other source. While there is a specified allowance, in respect of medical expenses, equal to 30 per cent of the Capital Sum of $250,000, its effect is no more than that actual (proved) expenses are only recoverable until that limit has been reached.
33 So far as the rehabilitation expenses are concerned, I have mentioned that "Vocational Rehabilitation Expenses" are defined in the policy to mean expenses incurred in the utilisation of specified means "to facilitate the restoration of the Volunteer to the fullest capacity for gainful employment of which he/she is capable". It is plain from the definition, read with item 45, that the insurer is liable only for actual, proved, expense up to the maximum of 7 per cent of the Capital Sum.
34 "Travel Expenses" are, as I have said, defined as "reasonable fares and expenses" actually incurred by the Volunteer, after authority has been given to incur them, in respect of travel to and from medical facilities, including the reasonable cost of meals and lodging necessarily incurred for the purpose of treatment or attendance at those facilities. The specified sum of $2000 is, as I have earlier mentioned, the maximum amount claimable (albeit, as I have also said, a greater sum than that was in fact reimbursed to the respondent in this case).
35 Finally, as to the payment for loss of income, it is plain from item 48 of the policy, read with cl 1.5(d), that, in the case of an employed person such as the respondent, the weekly amounts claimable are not to exceed, in any case, the normal weekly remuneration of the Volunteer at the time of his or her injury and are to be paid only while the Volunteer is "necessarily and continuously" disabled from attending to his or her business or occupation.
36 Consequently, in each case the policy provides for indemnification in the case of actual, proved, financial loss. There being nothing in the policy which, as I read it, reflects an intention to exclude the right of subrogation (indeed, cl 1.5(f) seems to me to point in the opposite direction), it follows that the equitable right is given to the appellant in respect of each of the four heads of claim to which I have referred.
What rights does the appellant have arising out of the making of the Deed and the consent judgment?
37 Counsel for the respondent contended in argument that, even if the trial Judge was wrong in his conclusion that the doctrine of subrogation had no application to the policy, it is not open to the appellant to exercise
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- that right in respect of any part of the sum of $145,000 received by the respondent from Surf Life Saving WA.
38 As I understood this argument, it rests upon two propositions, neither of which emerged, with any clarity, from the respondent's notice of contention. The first (which was not considered by the trial Judge and which seems not to have been directly raised by the respondent's pleading) is that, because the respondent is a "volunteer", and "not … a party to the contract of insurance", the payment of the insurance benefits to him was "a payment by way of benevolence" and there was no sufficient "nexus" between the appellant and either of the respondent or Surf Life Saving WA "to generate an equity which would be satisfied by requiring … [the insured] to pursue his legal rights against Surf Life Saving WA for the benefit of, and at the direction of … [the insured] to support a right of subrogation".
39 This argument is said to be supported by the cases of Hussain v New Taplow Paper Mills Ltd [1988] 1 All ER 541 and McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854.
40 In Hussain the plaintiff was employed by the defendants under a contract which provided that, if he was incapacitated for work as a result of an accident occurring in the course of his employment, he would receive his full pay for 13 weeks from the date of the injury and, thereafter, he would receive 50 per cent of his pre-accident earnings by way of a long-term sickness benefit. That benefit was payable under an insurance scheme run by the defendants who had taken out a policy to insure themselves against their contractual liability to pay a long-term sickness benefit to employees. The plaintiff was injured in the course of his employment. He sued the defendants in respect of his injury. He succeeded at trial. The trial Judge awarded damages for pre-trial and future loss of earnings without deducting the contractual long-term sickness benefit payable to the plaintiff. The question whether this deduction should have been made found its way, ultimately, to the House of Lords, which held that the benefit was to be brought into account and deducted from the awards for pre-trial and future loss of earnings.
41 Counsel for the appellant seemingly relies upon what was said by Lord Bridge (with whom the other members of the Court were in agreement) at 544 - 545. There, after discussing the prima facie rule that the only recoverable loss in a personal injury case is the net loss, Lord Bridge went on to say:
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- "But to the prima facie rule there are two well-established exceptions. First, where a plaintiff recovers under an insurance policy for which he has paid the premiums, the insurance moneys are not deductible from damages payable by the tortfeasor: see Bradburn v Great Western Rly Co (1874) LR 10 Exch 1, [1874-80] All ER Rep 195. Second, when the plaintiff receives money from the benevolence of third parties prompted by sympathy for his misfortune, as in the case of a beneficiary from a disaster fund, the amount received is again to be disregarded: see Redpath v Belfast and Country Down Rly [1947] NI 147. In both these cases there is in one sense double recovery. If the award of damages adequately compensates the plaintiff, as it should, the additional amounts received from the insurer or from third party benevolence may be regarded as a net gain to the plaintiff resulting from his injury. But in both cases the common sense of the exceptions stares one in the face. It may be summed up in the rhetorical question: why should the tortfeasor derive any benefit, in the one case, from the premiums which the plaintiff has paid to insure himself against some contingency, however caused, in the other case, from the money provided by the third party with the sole intention of benefiting the injured plaintiff?"
42 It seems to me that this case lends no real support to the respondent's contention. Lord Bridge was considering the situation as between the plaintiff and the tortfeasor and applying well-known principles in that regard. He was not addressing the question which arises in this case, being that of whether, in the case of an insurance policy which provides an indemnity against actual financial loss, moneys recovered from the tortfeasor in reduction of that actual loss should be taken into account. Moreover, it is a matter of no significance in this last context whether the person entitled to the benefit of the insurance policy is, or is not, a volunteer. Either way, all that the insurer has undertaken to do is to indemnify that person against his or her actual loss arising out of the event insured against and it is that which triggers the equitable rights to which I have earlier referred.
43 McCamley, too, involved an injured employee. He brought an action against his employers, who admitted liability. The defendants' holding company had taken out, on its own behalf and on behalf of its subsidiaries, a personal accident group insurance policy for the benefit of their employees. The employers were described in the policy as "the insured" and their employees as "the insured persons". The policy
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- provided that "if during the … Period of Insurance the Insured Person shall suffer accidental bodily injury which shall … result … in … Disablement or the incurring of Medical Expenses Insurers shall pay Compensation to the … Insured's personal representatives" calculated by reference to the annual wage rate of the insured person. Payments were made independently of any fault and were paid as a lump sum and not in substitution for lost wages resulting from the accident. The plaintiff made no contribution to the policy or its premiums and, prior to his accident, did not know of its existence. His employment contract made no reference to it. He received £45,630 from the defendants under the policy after they had received that sum from the insurers. At the trial of his action against his employers in order to determine the quantum of damages, the trial Judge held that the proceeds of the policy were not be taken into account in assessing the amount of damages. The defendants appealed. The Court of Appeal (O'Connor, Croom-Johnson and Balcombe LJJ) held that, since a payment under the personal accident policy was made as an act of benevolence whenever a qualifying injury occurred, even though the means used to effect the payment was the insurance policy, and because the sum payable was quantified in advance of an accident taking place and when it could not have been foreseen what damages might be sustained, the payment made to the plaintiff under the policy did not fall within the normal rule that there should be no double recovery and was to be disregarded. Consequently, the proceeds of the personal accident policy were not deductible from the damages awarded to the plaintiff.
44 Once again, this case seems to me to be of no assistance to the respondent. The issue which was decided by the Court of Appeal was whether there should be deducted from the award made against the tortfeasor (the employers) a payment made, by way of an act of benevolence, whenever a qualifying injury occurred. That issue is dissimilar to that which falls for decision in this case, being the question whether, the insurer having contracted only to provide compensation for actual financial loss, receipt of money from the tortfeasor (or its insurer) in respect of that loss is subject to the exercise, by the insurer, of its equitable right of subrogation.
45 Finally, so far as this first proposition is concerned, I should mention that s 48(2) of the Insurance Contracts Act 1984 (Cth) provides that a person who is not a party to a contract of general insurance, but who is referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, has, in relation to his or her claim, the same obligations to the insurer as the person would have if he or she were the insured.
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46 The second proposition advanced by counsel for the respondent (also not considered by the trial Judge) is that, because the respondent's claim against Surf Life Saving WA was resolved by compromise, without any liability being established or admitted, the lump sum which was received by him from that source (or from its insurer) was no more than an ex gratia payment which was not attributable to any particular expense incurred by him and hence could not be the subject of the exercise of a right of subrogation. His written submission (received subsequent to the hearing of the appeal pursuant to directions made by the Court) goes on to say, in this respect:
"(c) an ex gratia payment made in mere anticipation of a possible finding of liability, which has not yet occurred, does not support a right of subrogation on the basis of a claim for money had and received by the insured to the use of the insurer; …
(d) subrogation will not apply unless and until it is established by the appellant, as a matter of evidence … that the obligation of the insurer … to make payment of the insurance benefits under the Policy has been extinguished by the payment of the consent judgment of $145,000; …
(e) this reflects the requirement that the insurer, as a deemed or notional creditor, be, in effect, substituted to the rights and remedies of the insured as against the third party; …
(f) an insured is only required to account for benefits paid by the third party, which are a reduction or diminution of the loss indemnified against. … [The respondent] has received nothing through the compromise of his claim against Surf Life Saving WA which was in diminution of the loss insured against."
47 Counsel for the appellant, in his written submissions lodged after the conclusion of the hearing, acknowledges that he cannot point to any part of the $145,000 received by the respondent as being specifically referable to any of the expenses or losses reimbursed by the appellant to the respondent. He also acknowledges that the payment was made without any admission of liability. However, he contends that the appellant is nevertheless entitled to recover what it has paid to the respondent from the amount so received by the respondent.
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48 The competing submissions in this respect require some further consideration of the basis for the operation of the doctrine of subrogation. I have said that, in this context, the basis for its operation is the avoidance of double indemnity. There are, in this respect, dicta which suggest that the principle of subrogation arose as a remedy against unjust enrichment: In re TH Knitwear (Wholesale) Ltd [1988] 2 WLR 276 at 281; Orakpo v Manson Investments Ltd [1978] AC 95 at 104; and Re Palmdale Insurance Ltd (In liq) (No 3) [1986] VR 439 at 446; and see also Tarr et al, above, at 282. In Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436 at 442 the principle was said by Wilson, Dawson, Toohey and Gaudron JJ to rest on the proposition stated in Castellain by Brett LJ, at 386, that an insured "shall be fully indemnified, but shall never be more than fully indemnified". Consequently, as I have also said, the insurer is, in effect, able to exercise rights of the insured which may be necessary to ensure that the insured does not receive more than a full indemnity in respect of his loss (see AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655) and also to recover from the insured a benefit received by him or her in diminution or extinction of the loss against which the insured has been indemnified. That, in turn, has led to acceptance of the principle that an insured must not release, diminish, compromise or divert the benefit of any right to which the insurer is or will be entitled to succeed and enjoy under his right of subrogation: Brisbane Stevedoring, above, at 241, per Barwick CJ.
49 There is also authority for the proposition that, where an assured releases and settles with a third party after having been paid out by the insurer, and to its prejudice, the insured will be liable to compensate the insurer for the amount by which he or she has diminished the value of its right of subrogation: Dufourcet & Co v Bishop (1886) 18 QBD 373; West of England Fire Insurance Company v Isaacs [1897] 1 QB 226; Phoenix Assurance Co Ltd v Spooner [1905] 2 KB 753; Boag v Standard Marine Insurance Co Ltd [1937] 2 KB 113 at 127 - 129; and see also MacGillivray, above, at [22-55]. In Brisbane Stevedoring, at 241, Barwick CJ (with whom Windeyer J was in agreement) said that, "… when the insured's act has become effective as against the insurer, the insured will be liable to the insurer in damages, or possibly, on some occasions for money had and received".
50 There are cases which have asserted that a recovery which is held by an assured and which reduces the loss paid by the insurer is held on trust for the insurer. Older examples are Randal v Cockran (1748) 1 Ves Sen 98; Blaauwpot v Da Costa (1758) 1 Ed 130; 28 ER 633 and Commercial
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- Union Assurance Co v Lister (1874) LR 9 Ch App 483 at 484 (these, and other, cases were considered by the House of Lords in Napier, above, at 732 - 733, per Lord Templeman; at 741 - 742, per Lord Goff and at 750 - 751, per Lord Browne-Wilkinson). A more modern example is Re Palmdale Insurance Ltd at 446, per Crockett J, citing Goff and Jones, The Law of Restitution, 2nd ed (1978), at 428. However, in Napier, the House of Lords considered it sufficient, in the circumstances of that case, to impose an equitable lien (the basis for which was a specifically enforceable contractual obligation) over a defined fund which had been received by the insured from a tortfeasor in respect of a loss insured against and which was then still being held on behalf of the insured. The imposition of a trust was thought neither to be necessary to protect the insurers' interests nor desirable: see at 744 - 745, per Lord Goff, and 752, per Lord Browne-Wilkinson (illustrating, as Meagher, Gummow and Lehane point out, at [9-165], that equity will only grant relief sufficient to avoid the unconscionable result which would otherwise obtain). In a passage of more general application, Lord Templeman (with whom Lords Jauncey, Browne-Wilkinson and Glynn agreed) said, at 738:
"The principles which dictated the decisions of our ancestors and inspired their references to the equitable obligations of an insured person towards an insurer entitled to subrogation are discernible and immutable. They establish that such an insurer has an enforceable equitable interest in the damages payable by the wrongdoer. The insured person is guilty of unconscionable conduct if he does not provide for the insurer to be recouped out of the damages awarded against the wrongdoer. Equity will not allow the insured person to insist on his legal rights to all the damages awarded against the wrongdoer and will restrain the insured person from receiving or dealing with those damages so far as they are required to recoup the insurer under the doctrine of subrogation.
Where the insured person has been paid policy moneys by the insurer for a loss in respect of which the insured person recovers damages from a wrongdoer the insured person is guilty of unconscionable conduct if he does not procure and direct that the sum due to the insurer shall by way of subrogation be paid out of the damages."
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- lump sum, it is instructive to refer to the case of Horse, Carriage and General Insurance Co (Ltd) v Petch (1916) 33 TLR 131. There, the plaintiffs had insured the life of the defendant's brother for £1000 and his motor car against damage to the extent of £90. The policy provided that the plaintiff should be entitled to all the rights of the assured and to use his name in enforcing them. The defendant's brother was killed in a collision between the motor car and a railway train. The plaintiffs paid to the defendant, as his brother's executor, £1000 in respect of the death of the brother and £81.15.00 in respect of damage to his car. Thereafter, the defendant brought an action against the railway company under Lord Campbell's Act on behalf of the relatives. He included a claim for damage to the car and accepted from the railway company £1250 in full settlement of the action. The plaintiffs sued the defendant for recovery of the sum of £81.15.00 as money received to their use. The report records that Rowlatt J, after mentioning that the compromise prevented the plaintiffs from suing the railway company, went on to say (at 132) that the defendant had so dealt with the claim, in which the plaintiffs were interested, that it could not be ascertained what part of the £1250 was paid in respect of the motor car and that, if the defendant settled an action which he had no right to settle, the plaintiffs were entitled to treat him as having settled for the full amount. Rowlatt J went on to say:
"If the case was considered as one for damages for depriving the plaintiffs of their right to have the conduct of the claim, how could the defendant say that that right was worth less than the full £81 15s. 00d., for he himself had prevented the plaintiffs from proving that sum? It was clear that the compromise included the claim with respect to the motor-car."
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- "If the insured has been fully indemnified for the insured part of his loss, then, provided that a suit in respect of this may be brought separately, he has no right to enter into a settlement involving it without the insurer's consent. If, on the other hand, he is entitled to be dominus litus and to include it in a settlement, his equitable duty to safeguard the insurer's interests should require him to insist that the third party specify how much of the settlement moneys relate to the various losses. If the amount that is ascribed to the insured part of the loss is such that the insurer cannot recoup the amount of its payment, it may have an action in equity against the insured for prejudicing its right of subrogation, but only if it can be shown that the settlement did not involve a bona fide consideration of its interests."
53 Where does all of this leave the appellant? There is, in this case, no dispute as regards the proposition that, if a right of subrogation existed, as I have concluded it did, and if, as seems to me to be apparent, that right could have been exercised by the appellant in respect of the respondent's claim against Surf Life Saving WA (that claim being in respect of the very injury which led to the expenses paid by the appellant), the settlement or release executed by the respondent has precluded its exercise by the appellant. It is, in this respect, no answer for the respondent to say that Surf Life Saving WA has neither admitted liability nor been proved to be liable to the respondent for damages arising out of his accident. As was the position in Petch, it was the respondent's own act which prevented this from being proved. It seems to me also to be apparent, on the facts which are before us (particularly the terms of the Deed and the consent judgment), that the settlement was reached, and the release given, in circumstances in which there was no bona fide consideration of the appellant's interests. It consequently seems to me inevitably to follow that, in entering into the Deed and settling his action against Surf Life Saving WA on the terms upon which that was done (assuming, as both parties were content to do, that the settlement foreclosed any further right of recovery from Surf Life Saving WA), the respondent breached the duty which was owed by him to the appellant (which, as I have said, does not depend upon any contractual relationship between them).
54 That leaves the question of what is the appropriate remedy. In my opinion, the circumstances of this case are such that it should be one of an award of equitable compensation, encompassing the whole of what was paid to the respondent by the appellant. However, because relief has not been claimed in that way and, indeed, the cause of action has not, at least
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- with any clarity, been pleaded in the appellant's statement of claim in such a way as to support relief of that kind, it will be necessary to hear further from the parties as to the consequences which should follow from the conclusions at which I have arrived.
55 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
56 ROBERTS-SMITH JA: I have read in draft the reasons to be published by Steytler P. I agree with those reasons and have nothing to add.
45
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